CHRISTIAN OKEREKE v. THE STATE
(2013)LCN/6429(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of July, 2013
CA/E/159/2012
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
CHRISTIAN OKEREKE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE PURPOSE OF AN AMENDMENT OF THE RECORD OF AN APPEAL
Generally, the purpose of an amendment of the record of an appeal is to correct the record to reflect exactly the proceedings as they occurred at the trial so as not to disable the determination of the real issues in controversy and avoid in justice that would have occurred without the amendment. There are different types of such amendment depending on the type of error it seeks to amend.
1. Amendment of typographical errors
2. Amendment of errors of compilation.
3. Amendment of error by the trial judge in recording proceedings in Court. PER AGIM, J.C.A.
WHETHER OR NOT RECORDS OF THE PROCEEDINGS OF A COURT MUST BE PRESUMED TO BE CORRECT UNLESS A PARTY CHALLENGES ITS ACCURACY
The record of the proceedings of a court are sacrosanct and must be presumed to be correct unless a party challenging its accuracy successfully shows that it is not accurate in certain particulars. See OGLI OKO MEMORIAL FARMS LTD & ANOR v. NACB LTD & ANOR (2008) 12 NWLR (pt 1098) where Supreme Court per Onnoghen, JSC held that- “Any person who is contending that the record of proceedings before an appellate court is not a fair record of what happened at the court of first instance must first formally impeach the record of proceedings. Where the record of proceedings is not formally impeached, it is not open to the appellate court to speculate that other things happened in the trial courts which were not recorded in the record of proceedings.”
Where the accuracy of the record of proceedings is successfully impeached, this court can in the interest of justice amend the record to reflect the accurate record of the proceedings in question. See METAL CONSTRUCTION (WA) LTD & ORS v. MIGLIORE & ANOR (1979) 8-9 S.C. (Reprint) 118 where the Supreme Court per Sowemimo, JSC held that- “A Court of Appeal has an inherent power to amend the record of the trial court so as to comply with the facts proved before that court and decision given by it. This is a very necessary power which the Appeal court always exercise if and when necessary to prevent the occurrence of substantial injustice; whether the required amendment be formal (as in Divisional CHIEF GBOGBOLULU OF VAKPO v. HEAD CHIEF HODO (1941) 7 WACA 164 or quasi-substantial (as in CLACK v. WOOD (1881-2) 9 QBD 276)”. PER AGIM, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 27th of February 2012 the High court of Ebonyi State sitting at Abakaliki, per H. A. Njoku J. rendered judgment in charge No. HAB/7C/2008, convicted the appellant of murder and sentenced him to death by hanging, following his charge, arraignment and full trial for the murder of one Mrs. Elizabeth Aja.
Dissatisfied with this judgment, the appellant on the 7th of March 2012 commenced this appeal No. CA/E/159/2012 by filing a notice of appeal containing 9 grounds of appeal.
Both parties to this appeal have filed, exchanged and adopted their respective briefs of argument in this appeal. The briefs of arguments filed herein include the appellant’s brief of argument, the respondent’s brief of argument and the appellant’s reply brief.
The appellant in his brief of argument raised the following issues for determination:
1. Was the learned trial Judge correct when he stated flatly that the PW1 did not give any evidence of the “alleged” 24 feet? (Ground 1 of the Appeal).
2. Was the learned Trial Judge correct or in order when he described the evidence of DW2 as being “defence invented”? (Grounds 4 and 6 of the Appeal).
3. If the answers to the questions above are in the negative, did each of the situations portrayed the questions, not occasion a miscarriage of justice?(sic)
4. On the totality of the evidence led at the trial, was there no lingering doubt that it was not the accused person who killed the deceased woman? (Grounds 2, 3, 5, 7, 8 and 9 of the Appeal).
The respondent in its brief of argument adopted the appellants issues Nos. 1, 2 and 3 and framed its own issue No. 4 thus – “whether in view of the evidence before the lower court, was the learned trial judge justified in convicting the appellant for the murder of the deceased.”
Pending the hearing of the substantive appeal, the appellant challenged the correctness and accuracy of the record of appeal and applied for the amendment of the record of this appeal on the ground that what the trial court stated in its judgment as what PW1 said is different from what the witness actually said in his testimony in respect of the distance between the place the gun was shut from and where the deceased was when she was shut. The appellant had on the 10th May 2012 filed. “AFFIDAVIT TO CORRECT ERRORS OF OMISSION IN THE RECORD OF APPEAL” deposed to by Mrs. Clara N. Nwachukwu, Learned Counsel in the law office of Learned Senior Advocate for the appellant. Thereafter the appellant also filed a motion on notice praying for:
1. An Order amending the Record of Appeal in Order to reflect accurately the evidence of PW1 as to the distance from which the alleged fatal shot was fired.
2. Leave of the Honourable court to use and rely on the Affidavit of Mrs. Clara N. Nwachukwu, particularly paragraphs 7, 8 and 9 thereof already filed in this court as a true narration of events and in place of the corrected version for purposes of this appeal.
3. And such further Order or other Orders as to the Honourable court may deem fit.
The motion is supported by an affidavit also deposed to by the same Mrs. Clara N. Nwachukwu. The application relied mainly on the said affidavit of 10th may 2012 to correct errors of omission.
The said affidavit of correction of errors of omission in the record of appeal was served on the Trial Judge and the Registrar of the trial court. The Registrar of the trial court, in response thereto deposed to an affidavit headed “AFFIDAVIT OF MR. ALEXANDER EZE, REGISTRAR HIGH COURT, NO 1, EZZANGBO, OHAUKWU JUDICIAL DIVISION” The certified true copy of the hand written notes of the trial judge was annexed to the said affidavit.
The ground upon which the amendment of the record of appeal is sought is stated in paragraphs 6, 7 and 8 of the affidavit to correct errors of omission in the record of appeal. Therein the deponent stated –
6. That it is not entirely correct as the Trial court recorded on page 227 lines 4-82 of the Record that the PW1 only said that “the distance between where we were from the point that Christian Okereke was standing and shot my brother’s wife is about 18 feet”.
That the true testimony of PW1 is that the distance from where the shot was fired to where the deceased was standing was the equivalent of the distance from where he stood in the witness box to the wall opposite the court hall.
8. That it was the court, with the agreement of both sides that ascribed 18 feet to the distance described by the witness, as its estimate of the distance.
It is not the accuracy of the entire record of appeal that was challenged by the appellant. Paragraph 6 of the said affidavit to correct errors of omission state that the inaccurate recording is at page 227 lines 4-82 of the record of appeal. This is the part of the record of appeal sought to be amended. Page 227 of the record of appeal contains the judgment of the trial court and not the testimony of PW1. In the part of the judgment in this page the trial court expressed its opinion as to what PW1 said was the distance between where the deceased, Mrs. Elizabeth Aja was shot and the point the accused stood and shot her and decided the question of who, as between PW1 and DW1 testified that the distance was 24 feet. The trial court held that PW1 testified that it was 18 feet and that DW1 testified that the distance was 24 feet. The exact wordings of the part of the judgment at page 227 are as follows –
“Before I proceed further, I wish to state with the greatest respect to the Learned silk for the accused person, that the PW1 never gave any evidence of distance of the alleged 24 feet. What the PW1 stated in his evidence before this court on 23rd April, 2009 was as follows:-
“the distance between where we were from the point that Christian Okereke was standing and shot my brother’s wife is about 18 feet”
The said distance of 24 feet was rather given by the defence witness James Onu who testified before the court on 12th October, 2010. In the course of his evidence, James Otu Onu who testified as DW1 stated that the distance from the witness box in the court, to the window across and directly facing the witness box is 24 feet. It was at that stage that the Learned Silk for the defence applied that the distance between the two points namely from the witness box in the court to the window on the opposite side and directly facing the witness box be measured. The application for the measurement of the distance between the two points having not been opposed, same was granted, and the clerk of court was ordered to measure the distance between the two points on a tape provided by the defence counsel. After the measurement both counsel agreed that the distance from the said points to the other was 24 feet, which said agreed 24 feet distance by both counsel was accepted by the court as the distance between the witness box and the window directly facing the said witness box.”
This is the part of the record of this appeal he seeks to amend. The appellant feels that the trial court should have adopted an estimate of 24 feet as the proper distance, because, in his opinion it was more favourable to him. So the purpose of this application to amend is to correct the estimate by the court to read 24 feet as the estimate that was made by PW1. This purpose is clearly brought out by the submission of the Learned Senior Advocate for the appellant as follows- “The law is settled that if evidence led at the trial is capable of more than one interpretation, that interpretation more favourable to the accused person will be preferred. Since in this matter, there is more than one estimate of the distance from where the alleged fatal shot was fired, it follows that the estimate of the distance most beneficial to the accused person is to be preferred. Unless the record is amended as requested, the Appellant will be denied the benefit of the 24 feet distance to which he is entitled and which was proved in evidence.”
The Learned Senior Advocate has raised this issue of the appropriate distance as one of interpretation of the evidence or choice between different estimates. It is obvious from the affidavits in support of the application for the amendment of the record and the argument of Learned Senior Counsel for the appellant that it is the appellant’s contention that the PW1’s estimate of the distance from the point of shooting to the point of contact of the bullets with the deceased as stated in paragraph 6 of the affidavit to correct error is consistent with the physical measurement of 24 feet and not 18 feet. It is implicit in the contention of the appellant that the trial court’s statement or finding that PW1 said the distance is 18 feet is at variance with the evidence contained in the testimony of PW1. If the conclusion of the trial court on the evidence or its choice of estimate is wrong in the sense that it is at variance with the evidence that cannot be regarded as a case of inaccurate recording of the evidence. The proper thing to do is to urge during argument of the appeal that such conclusion or choice be set aside because it is at variance with the evidence on record. If the trial court in its judgment while considering the evidence on a point ascribes to a witness a testimony the witness did not make, it is a matter to be raised in the argument of the appeal. In that event any conclusion or inference on the basis of such wrong quotation or view of a witness testimony will be set aside as being at variance with the evidence. I do not think that the proper course of action is to bring an application for an amendment of that part of the judgment to reflect the correct quotation or correct view of a witness testimony or a choice of estimate in favour of the appellant. An application to amend the record of this appeal for the purpose of changing the trial court’s view or interpretation of the evidence of PW1 on the distance of the gun shot to one that is more favourable to the appellant is in my humble view absurd to the extreme. Such an application is unknown to law. The record of appeal cannot certainly be amended to correct the trial court’s view of the evidence of a witness in its judgment. Such an application cannot be equated, as the Learned Senior Advocate for the appellant has sought to do here, with an application to amend the record of appeal to bring it in conformity with the evidence before the trial court and its decision on such evidence.
Generally, the purpose of an amendment of the record of an appeal is to correct the record to reflect exactly the proceedings as they occurred at the trial so as not to disable the determination of the real issues in controversy and avoid in justice that would have occurred without the amendment.
There are different types of such amendment depending on the type of error it seeks to amend.
1. Amendment of typographical errors
2. Amendment of errors of compilation.
3. Amendment of error by the trial judge in recording proceedings in Court.
The first error occurs where the secretary or typist or the person typing the record of appeal from the trial judge’s hand written notes of the proceedings wrongly spells words, omits to type some portions of the notes or types anything that is not in the handwritten notes. This kind of error is commonly referred to as typographical error.The second type of error occurs where the typing or production of the notes is completed, but in compiling the documents relevant to the appeal, some parts of the documents or the typewritten records are omitted in the compiled record. The first type of error can be easily corrected by reference to or comparison with the records in the original case file in the trial court to ensure that what is contained in the record of appeal is exactly the same as the content of the said original case file. An appellant for such an amendment brings an application by a motion on notice supported by an affidavit challenging the record of appeal as it is, with the certified true copy of the handwritten notes in the original case file annexed thereto. Where it is obvious from a comparison of the certified true copy of the said notes a exhibited with the said affidavit that the content of the record of appeal is not correct, this court will exercise its power under S.15 of the Court of Appeal Act to amend the Record of appeal to bring it in conformity with the content of the handwritten notes in the record of the proceedings at the trial court. The second type of error can also be easily amended by the filing of an additional or supplementary record of appeal containing the omitted parts of the original case file of the trial court with the leave of the court granted pursuant to S.15 of the Court of Appeal Act.
The third type of error occurs where the trial judge in recording what happened or what was said during the proceedings in the case at the trial court, records something different from what actually took place or what was said by a particular party or his counsel. The correction of this kind of error is more challenging than the first and second types of errors. Where both parties do not agree that the record of the trial court proceedings as contained in the record of appeal does not reflect what actually occurred or what was said by a witness or other person. In that kind of situation you have the affidavit of one party supporting the accuracy of the record of appeal as against the affidavit of the other party challenging the accuracy of the record. In the face of these irreconcilably conflicting affidavits, it will be very difficult, if not impossible to impeach the accuracy of the record. This is more so where the trial judge, upon being served with the affidavit challenging the accuracy of the record, states that his handwritten notes is the correct record of what took place or was actually said. In this kind of situation, it is obvious that the preponderance of evidence is in favour of the accuracy of the record. In the face of the conflicting affidavits between the parties, the affidavits of the trial judge’s confirmation of the accuracy of his record, this court cannot rely on the mere assertions in paragraphs 6 and 7 of the applicant’s affidavit challenging part of the judgment of the court, to amend the record of appeal. The appellant has not been able to impeach page 227 or any part of the record of appeal. This is because the view the trial court took of PW1 and DW1 evidence on the measurement of the distance from where accused stood to where the deceased was shot is supported by the evidence of PW1 during cross-examination as is clearly shown in the certified true copy of the trial Judge’s handwritten notes of the testimony of PW1 attached to the Affidavit of Mr. Alexander Eze, the Registrar of the Trial court. The testimonies of the witnesses in the record of appeal were typed from the handwritten notes of the Trial Judge. The said hand written notes of the Trial Judge clearly record PW1 as saying that “The distance between where we were from the point that Christian Okereke was standing and shot my brother’s wife is about 18 feet.” It is noteworthy that the accuracy of this manuscript or hand written notes is not challenged by the appellant.
This handwritten notes of the Trial Judge, is the primary source of the record of this appeal. It is from this manuscript that pages 107-116 of the record of this appeal containing the testimony of PW1 was typed. In the interest of justice it can be relied on to supply any part of the said proceedings inadvertently omitted due to typographical errors. I have noticed that Page 113 of the record of appeal which contain the evidence of PW1 during cross-examination on this matter, show clearly that there were some inadvertent errors of omission when typing from the manuscripts. It states in lines 7-8 that “he then shot my brothers wife is about 18 feet.” It is obvious that something is omitted here. The part omitted as clearly stated in the manuscript are the words “the distance between where we were from the point that Christian Okereke was standing and shot my brothers wife,” before the words “is about 18 feet”. Surprisingly there was no application to amend this part of the record to correct this obvious typographical error to reflect the exact recording in the handwritten notes. Rather the appellant has brought an application to amend page 227 of the record of appeal containing the view the trial court took of the evidence before it. The appellant’s challenge of the record of this appeal was specifically targeted at page 227 of the said record and that is the part he wants this court to amend.
The record of the proceedings of a court are sacrosanct and must be presumed to be correct unless a party challenging its accuracy successfully shows that it is not accurate in certain particulars. See OGLI OKO MEMORIAL FARMS LTD & ANOR v. NACB LTD & ANOR (2008) 12 NWLR (pt 1098) where Supreme Court per Onnoghen, JSC held that- “Any person who is contending that the record of proceedings before an appellate court is not a fair record of what happened at the court of first instance must first formally impeach the record of proceedings. Where the record of proceedings is not formally impeached, it is not open to the appellate court to speculate that other things happened in the trial courts which were not recorded in the record of proceedings.”
Where the accuracy of the record of proceedings is successfully impeached, this court can in the interest of justice amend the record to reflect the accurate record of the proceedings in question. See METAL CONSTRUCTION (WA) LTD & ORS v. MIGLIORE & ANOR (1979) 8-9 S.C. (Reprint) 118 where the Supreme Court per Sowemimo, JSC held that- “A Court of Appeal has an inherent power to amend the record of the trial court so as to comply with the facts proved before that court and decision given by it. This is a very necessary power which the Appeal court always exercise if and when necessary to prevent the occurrence of substantial injustice; whether the required amendment be formal (as in Divisional CHIEF GBOGBOLULU OF VAKPO v. HEAD CHIEF HODO (1941) 7 WACA 164 or quasi-substantial (as in CLACK v. WOOD (1881-2) 9 QBD 276)”.
As I had said the appellant herein has not even challenged the records in the handwritten notes or any part of pages 107 to 115 of the record of appeal containing the testimony of PW1 as inaccurate. Since the appellant is contending as a basis of the application to amend the record that what PW1 said is different from what the trial court wrote, it is the record of the testimony of PW1 in the manuscript and page 113 of the record of appeal that he should have challenged and applied to amend and not the record of judgment of the court at page 227. The legal consequence of this lack of challenge of the manuscript is that it must be presumed to be correct.
Even if it is assumed that his challenge of page 227 of the record of appeal is in substance a challenge of the handwritten notes of what PW1 said on the matter, the trial judge has in response to the affidavit of Mrs. Clara N. Nwachukwu confirmed the accuracy or correctness of the handwritten notes. Paragraph 10 of the Affidavit of Mr. Alexander Eze, Registrar of the trial High Court state that the affidavit of Mrs. Clara N. Nwachukwu to correct errors of omission in the record of this appeal was served on the trial judge for his comments as directed by this court and the trial judge perused same.
The said Registrar of the Trial court further deposed in paragraphs 11, 12, 13 and 14 of his said affidavit thus –
“11. That His Lordship, Hon. Justice H. A. Njoku also informed me and I verily believe him that there were no omissions or any corrections to be effected whatsoever, on the record of proceedings, vis-a-vis the evidence of the PW1, as testified by him on 23rd April, 2009 before him.
11. That regarding paragraph 11 above, His Lordship Hon. Justice H. A. Njoku has ordered me to reproduce and attached hereto, in this affidavit certified true copies of his hand written record of the proceedings of the relevant portions of the testimonies of the said PW1 on 23rd day of April 2009 in charge No. HAB/7C/2008.
12. That I have in compliance to the above order of His Lordship, reproduced the said testimonies of the said PW1 as recorded in his Lordship’s own hand-writing on 23/4/2009 and same have been duly certified by the Assistant Chief Registrar Mr. Emmanuel Nwanekwa, and they are hereby attached as Exhibit A.
13. That His Lordship, Hon. Justice H. A. Njoku informed me and I verily believe him he is bound by the record of the proceedings of the Court regarding the testimonies of the PW1 on that 23/4/2009 and that he also believe same to be correct and as an exhaustive recording of what transpired in the court during the testimonies of the PW1 on 23/4/2009.”
Even paragraph 8 of the affidavit of Mrs. Clara N. Nwachukwu confirms the accuracy and correctness of the said record. The said paragraph 8 states that both parties agreed to the court’s record that the PW1 testified that the distance of the gun shot is 18 feet. The appellant, who had agreed to the correctness of the said record at the trial, is now on appeal challenging the record as not correct. The appellant cannot on appeal take a position inconsistent with the position he took during trial.
However, it is now obvious from the address of both counsels on this issue that in this appeal, both sides do not agree on the matter. While the appellant contends that the record at page 227 is not correct, the respondent on the other hand maintains that it is correct. An applicant for the amendment of the record of an appeal on the ground that what is recorded as the testimony of a witness is not what the witness actually said must show so conclusively and convincingly. The need for such a conclusive proof is more acute when as in this case, there is no agreement by both parties on what the witness said and one party is supporting the accuracy of the record of the court. The appellant is relying on the assertion in paragraphs 6 to 8 of the affidavit of Mrs. Clara N. Nwachukwu for this conclusive proof that the trial court did not record correctly the testimony of PW1 on the said distance of the gun shot. The kind of affidavit evidence that will successfully impugn the correctness of the records of a court must be very cogent and compelling. Paragraph 8 of the affidavit of Mrs. Clara N. Nwachukwu challenging the correctness of the recording that PW1 testified that the distance is 18 feet, stated that the same record of the distance as 18 feet was done with the agreement of the appellant and the respondent. The question that arises from this deposition in paragraph 8 is can this affidavit that contains an admission by the appellant that he agreed to the court’s record of 18 feet as what PW1 said, amount to conclusive or cogent and compelling proof that the said court’s record is not correct? The answer is obviously no. Such an admission rather shows that the record of the court is correct. The evidence that the appellant agreed to such record as correct at the trial renders this challenge to the correctness of this record on appeal baseless and frivolous. I do not think that the appellant has done enough to rebut the presumption of correctness of the record of this appeal.
The Learned Senior Counsel for the appellant sought to show that even Learned counsel for the respondent had in his address at the trial court agreed that the PW1 in his testimony merely estimated the distance from the point of shooting to the point where the deceased was hit by the bullet to be equal to the distance from the witness stand to the building wall opposite the stand in the court hall and that it is the trial court that ascribed 18 feet to the distance. To demonstrate this concurrence by Learned counsel for the respondent, he reproduced and relied on the said address contained in pages 70-71 of the record of this appeal as follows – “The PW1 estimated the distance from where the accused fired the shot to be from the witness stand to the wall opposite the court hall. The court with the agreement of the legal representation on both sides ascribed eighteen (18) feet to the distance.” The appellant also elicited affidavit evidence of this agreement by both sides to the court’s record of 18 feet as the distance in paragraph 8 of the affidavit of Mrs. Clara N. Nwachukwu challenging the correctness of the record of appeal. It is obvious that the purpose of this reliance by Learned Senior Counsel for the appellant on this agreement is to exploit the legal principle restated by the Supreme Court in AKINYEDE & ORS v. OPERE & ORS (1967) 1 All NLR 302 that where both parties agree that the record of the court is not correct an amendment of the record of appeal may be considered. But the affidavit evidence and the portion of the address of Learned Counsel for the respondent at the trial referred to above show that both parties agreed that the record of the court on the matter is correct. The record was with the agreement of both parties at the trial. Now in this appeal the appellant is contending that the same record is not correct. The respondent is insisting it is correct. The Trial Judge who recorded the testimony has confirmed that what he recorded is correct. Clearly, the special circumstances which the Supreme Court held in AKINDELE & ORS v. OPERE (supra) may warrant an amendment of the record of appeal do not exist here. There is no agreement of both parties that the record is not correct and there is no conclusive proof that the record is not correct. The appellant has failed to show the injustice he seeks to prevent by this application.
For all of the above reasons, I refuse the appellant’s said application for an order of this court to amend the record of appeal and for the leave of this court to use and rely on the affidavit of Mrs. Clara N. Nwachukwu to correct alleged errors of omission in the record of appeal as it lacks merit. It is accordingly hereby dismissed.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother, Emmanuel Akomaye Agim, J.C.A. before it was delivered. I agree with his reasoning and I dismiss the appeal accordingly.
Appearances
Chief Eze Duru-Iheoma, SAN with Mrs. C. N. C. NwachukwuFor Appellant
AND
E. Uwakwe Esq.For Respondent